United States of America, Plaintiff-appellee, v. Benjamin Duncan, Defendant-appellant, 983 F.2d 1078 (9th Cir. 1993)

MEMORANDUM^** 

Benjamin Duncan appeals his sentence imposed following entry of guilty pleas to two counts of bank robbery in violation of 18 U.S.C. § 2113(a). Duncan contends the district court erred by refusing to depart downward from the applicable United States Sentencing Guidelines range because it failed to recognize that it had discretion to do so based upon his youthful lack of guidance. We dismiss the appeal.

A district court's discretionary refusal to depart downward is not reviewable on appeal. United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992).

At sentencing, Duncan argued that the district court should depart downward based upon his youthful lack of guidance. The record indicates that the district court exercised its discretion when it found such a departure inappropriate under the circumstances presented in this case.

On appeal, Duncan argues that because there were factors present which could support a departure based on youthful lack of guidance, the district court was required to exercise its discretionary power to depart from the applicable Guidelines range. This argument is unavailing. The law in this circuit is clear that where, as here, the district court exercises its discretion when it declines to depart downward, we have no jurisdiction to review this decision. See id.; see also United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990) ("a district court's discretionary decision not to depart downward from the guidelines is not subject to review on appeal").

DISMISSED.